Johnston v VWA (Ruling)

[2017] VCC 713

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-16-03350

Kim Maree Johnston	Plaintiff
v
Victorian WorkCover Authority (T/as Worksafe Victoria) on behalf of KBI No.5 Pty Ltd (Deregistered, Former CAN 112 168 475)	Defendant

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JUDGE:	His Honour Judge Saccardo
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2017 – 2 June 2017
DATE OF RULING:	31 May 2017
CASE MAY BE CITED AS:	Johnston v VWA (Ruling)
MEDIUM NEUTRAL CITATION:	[2017] VCC 713

REASONS FOR RULING
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Subject:  Allegation of Contributory Negligence
Cases Cited: McLean v Tedman & Anor (1984) 155 CLR 306
Ruling:  Contributory Negligence not to be considered by the jury

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr E Makowski of Counsel	Williams Winter Solicitors
For the Defendant	Mr D McWilliams of Counsel with Ms J Zhu of Counsel	Russell Kennedy

HIS HONOUR:

1       Application is made on the behalf of the plaintiff in this trial that the defence by the defendant in which contributory negligence is alleged against the plaintiff be taken away from the jury.

2       In its further amended defence dated 30 May 2017 the defendant makes the following allegations of contributory negligence against the plaintiff;

·    failing to keep any or any proper look out;

·    failing to watch where she was placing her feet; and

·    failing to take reasonable care where she was placing her feet.

3       In pressing its position that contributory negligence should be considered by the jury, the defendant relies upon the following evidence:

(i)    the photograph taken by Mr Dohrmann which reveals a reconstruction by the plaintiff of the circumstances her trip and which shows the degree to which the plaintiff missed her step; it being the defendant’s position that the extent of the “miss” is such that it could not be categorised as mere inadvertence;

(ii)    the evidence given by the plaintiff as follows:

“Question: But you certainly weren’t looking down when you were climbing the stairs were you?

Answer: No

Question: You weren’t paying particular attention to where you were putting your feet?

Answer: I couldn’t say. Carrying a box, I think would be a little more careful.

Question: And you were conscious of being more careful in this instance?

Answer: No. I, I don’t recall. It was just - you know, a common occurrence for me, I just went up the stairs.”[1]

[1]T 250 L 4– 12

4       I am satisfied for the following reasons that the plaintiff is entitled to the order sought in this instance.  In this proceeding there is no issue that:

·    the plaintiff alleges that she suffered injury by reason of the negligence of the defendant in allowing a system of work to develop in which the plaintiff was required to access her place of employment via an internal stairway in the absence of the defendant implementing any system or instruction as to that activity;

·    the plaintiff was injured on the day in question as she was ascending the stairs whilst carrying a file box supported by both her hands in front of her;

·    the size of the box was such that it prevented the plaintiff from seeing the steps immediately in front of her;

·    the plaintiff had undertaken the identical task to that which she was performing at the time at which she was injured on a number of occasions during which she:

(i)    had never encountered difficulty performing the task; and

(ii)    had never appreciated the presence of any danger associated with the task.[2]

[2]T  241 L12-27

5       Indeed it is the defendant’s position that the task in which the plaintiff was involved at the time which she was injured was such a simple and every day aspect of normal life that:

·    the plaintiff required no warnings as to the performance of the task; and

·    the defendant was not required to undertake any risk analysis of the task or to put in place any system for its safe performance.

6       It is the plaintiff’s case that the defendant’s system of work exposed her to unwarranted risk of injury essentially for two reasons relevant to the defendant’s pleading of contributory negligence:

(i)    The first being that it required the plaintiff to climb the stairs while she was carrying a box which impaired her vision of the steps as she ascended to access her workplace; and

(ii)    The second being that in requiring the plaintiff to carry a box supported by both her hands she was denied access to the handrail affixed to the stairs.  This in turn involved an unsafe system of work in that it denied the plaintiff the ability to maintain three points of contact whilst on the stairway, those points being her feet on the stairs and her hand on the handrail.

7       There is no evidence that the plaintiff knew or ought to have known that she was at any risk of injury in mounting the stairs in the way in which she did. In fact any evidence as to this issue supports a position to the contrary.

8       In my view the viva voce evidence relied upon by the defendant to which I referred above in no way assists the defendant in its obligation to establish, on the balance of probabilities, any of the failures alleged against the plaintiff in support of its position that she failed to take exercise care for her own safety.

9       Further, assuming that the jury accepted the accuracy of the photograph relied upon by the defendant as depicting actual position of the plaintiff’s foot at the time at which she fell, I am not satisfied that the photograph could support a finding of contributory negligence merely on the basis that it establishes the absence of mere inadvertence because “it could not be mere inadvertence to miss it by that much.”[3]

[3]T 685 L5-6; In putting this position leading Counsel for the defendant was clearly referring to the step.

10      Given:

(i)    the everyday nature of the task involved by the plaintiff at the time she was injured, namely ascending a set of stairs;

(ii)    the familiarity which the plaintiff had with the task, namely that she had ascended the stairs as part of an everyday activity, and had undertaken the identical task which she was performing at the time at which she was injured some twelve or so times before without incident;

(iii)    the absence of any evidence that the plaintiff should have appreciated any danger associated with the task; and

(iv)    the fact that the way in which the plaintiff was holding the box was such that it precluded the plaintiff from seeing the steps immediately in front of her;

I am of the opinion that any failures by the plaintiff as alleged against her by the defendant in making its allegation of contributory negligence really involve mere inadvertence on her part[4] and that the degree to which the plaintiff may have missed the step does not operate in any manner so as to diminish the presence of mere inadvertence as being responsible for the plaintiff’s fall.

[4]See McLean v Tedman & Anor [1984] HCA 60; (1984) 155 CLR 306 at 315 (Mason, Wilson, Brennan

and Dawson JJ).

11      Further, even if I were to be wrong in the view expressed above I am of the opinion that the defendant’s assertion that the plaintiff should be found to be guilty of contributory negligence by reason of her failure to watch what she was doing as she climbed the stairway, fails comprehensively to establish that failure as being operative in any way in causing the plaintiff’s injury.

12      Even if there was some basis upon which it could be said that the plaintiff failed to exercise reasonable care for her own safety by reason of her failure to take appropriate care in looking and placing her feet which was a cause of her losing her balance, it is incumbent upon the defendant to establish that this failure was in turn a cause of the plaintiff suffering injury.

13      In my opinion in circumstances in which the plaintiff should have had the ability to arrest the consequence of misplacing her foot by the use of the handrail had she been afforded the relevant point of contact, causation is not made out.

14      In making good it’s allegation of contributory negligence as set out in paragraph 20 of the defendant’s further amended defence, it is incumbent upon the defendant to establish on the balance of probabilities that the alleged failures by the plaintiff were a cause of the injury, loss or damage suffered by her.

15      In the absence of any evidence that even with access to the handrail the plaintiff would none the less have suffered injury, the causative relevance to the plaintiff’s injury of any want of proper care by her whilst ascending the stairs by:

·    failing to keep a proper lookout; or in

·    the manner in which she placed her feet;

remains a matter of mere speculation.

16      For the reasons set out above even were I to be mistaken as to the view which I have taken that any failure by the plaintiff in this instance involves mere inadvertence, I am satisfied that the defendant’s claim of contributory negligence must fail by reason of the fundamental lacuna which arises between the particulars relied upon by the defendant and the cause of the plaintiff’s injuries.

17      For these reasons I am satisfied that the issue of contributory negligence should not be considered by the jury and that the jury’s deliberation should be confined to the first two questions which have been prepared by the parties.